12/16/2004

The Institute for Justice has soldered progressive and conservative groups into a surprising coalition that is urging the U.S. Supreme Court to prohibit the taking of private property for economic development.

Twenty-five groups with assorted political views have filed briefs in support of the Fort Trumbull residents who are resisting the city's effort to take their houses to make way for offices and a hotel that will strengthen the city's tax base. The Institute for Justice is representing those residents before the high court, which will hear the case on Feb. 22.

The use of eminent domain riles libertarian groups, including the Cato Institute, because it infringes on an individual's right to hold property. And it vexes progressive groups, including the NAACP and the Southern Christian Leadership Conference, because it undermines the strength of community.

“If you look at the list, there's a left-right consensus,” said Richard Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and the counsel for the Cato Institute, a libertarian think tank. “If you care about community, how do you build a community by knocking down houses and putting up sewers?”

Among the people and groups that have rallied behind the property owners are Jane Jacobs, a renowned urban planning theorist; John Norquist, president of the Congress for New Urbanism; the AARP; the American Farm Bureau; and the Becket Fund for Religious Liberty.

Those groups filed their briefs earlier this month, at the same time the Institute for Justice presented its opening brief to the court. The city and the New London Development Corp. will file a reply brief on Jan. 14, when their amicus curiae, or friend of the court, briefs will also be due.

At issue in the case is whether governments, claiming the need to produce jobs and tax revenue, can take private homes and businesses and hand them to developers who dangle promises of economic growth.

While the city and NLDC will argue that such development improves public welfare as a whole, the Institute for Justice and its allies believe that such takings undermine property rights and disrupt communities rather than strengthen them.

Several of the amicus briefs filed this month claim that massive redevelopments, by their very nature, target modest neighborhoods — the kind that tend to have high concentrations of elderly people or minorities who lack the political clout to fight back against powerful private developers.

“The reason these groups are disproportionately affected is that they are palatable political and economic targets,” says the brief co-sponsored by, among others, the National Association for the Advancement of Colored People, the AARP and the Southern Christian Leadership Conference.

The same brief points out that relocation can be particularly traumatic for people like Wilhelmina Dery, a Fort Trumbull resident who has lived in her house since 1918. The elderly not only have deep sentimental ties to their homes, but they often have paid off mortgages and might not have the resources to find desirable housing in the current market.

“Older folks are uniquely affected by losing their homes and communities because of the time they've put in,” said Susan Ann Silverstein, an attorney for AARP, the senior citizens' advocacy organization.

The Cato Institute takes up the same line of thought when it points out that takings for economic development ask a few property owners to make an extreme sacrifice for the benefit of the many, without assurance they will share in the spoils.

The Fifth Amendment to the Constitution requires any level of government that condemns private property to pay the owners “just compensation” for their losses. However, several of the briefs contend that paying an owner for fair market value does not make up for feelings of personal loss or for the dismantling of a community.

The Becket Fund for Religious Liberty notes that religious institutions and other non-profits are especially vulnerable to takings for economic development because they produce none of the tax revenue coveted by poor cities. They do, however, produce “public goods,” or a social support network, that is not factored into the economic development equation, the brief argues.

This is where the Becket Fund, a group that advocates for the free expression of religion in public life, intersects with Jane Jacobs, the urban planning expert and author of the book, “The Death and Life of Great American Cities.”

The Jacobs brief argues that redevelopment guts neighborhoods by scattering its residents and destabilizing the vital interaction among business and religious and civic groups. Projects like Fort Trumbull replace “real neighborhoods with counterfeits,” the brief says.

Common through all the briefs is the notion that eminent domain, specifically when invoked for economic development, inflicts terrible harm on residents while awarding profits to private developers who might use their money and influence to win special indulgences from governments.

In the case of Fort Trumbull, the city and the NLDC took the private property; the state also subsidized the project with $73 million.

The other side has argued that New London took the property to reverse a long pattern of economic decline and to capitalize on the arrival of the Pfizer Inc. global research headquarters, a major coup for the city after it lost thousands of jobs when the Naval Undersea Warfare Center left in 1996.

Daniel Krisch, an attorney representing the city and the NLDC, said he expects at least seven or eight amicus briefs to be filed in support of his clients. Other cities and planning associations, as well as a panel of law professors, are likely to file when the briefs are due in January.

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